[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

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ELEVENTH CIRCUIT
No. 08-14733
Non-Argument Calendar
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MAR 3, 2009
THOMAS K. KAHN
CLERK

D. C. Docket No. 95-00047-CR-A-N

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
versus
ERIC MOORMAN,
Defendant-Appellant.

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Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(March 3, 2009)
Before TJOFLAT, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
Eric Moorman, a federal prisoner proceeding pro se, appeals the district

courts order reducing his total sentence, under 18 U.S.C. 3582(c)(2), for two
crack cocaine-related convictions from 328 to 264 months imprisonment, but
denying his request for a below-amended guidelines range sentence.
In 1995 Moorman was convicted on two federal drug charges involving
crack cocaine, his guidelines range was 292 to 365 months imprisonment, and he
was sentenced to 328 months. In 2008 he moved for 3582(c)(2) relief and,
specifically, for a sentence below the guidelines range as reduced by Amendment
706. The district court found that his amended guidelines range was 235 to 293
months imprisonment and it reduced his sentence to 264 months, the midpoint of
that amended range.
Moorman contends that the district court should have reconsidered factual
issues that were decided at his original sentencing hearing. He also contends that
he was entitled to a below-amended guidelines range sentence under Booker 1, and
that his amended sentence was unreasonable because the district court did not
consider the 18 U.S.C. 3553(a) factors.
In a proceeding to modify a sentence under 18 U.S.C. 3582(c)(2), we
review de novo the district courts legal conclusions regarding the scope of its
authority under the Sentencing Guidelines. United States v. White, 305 F.3d

United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
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1264, 1267 (11th Cir. 2002). Under 3582(c)(2), a district court has discretion to
reduce the term of imprisonment of an already incarcerated defendant if that
defendant has been sentenced to a term of imprisonment based on a sentencing
range that has subsequently been lowered by the Sentencing Commission pursuant
to 28 U.S.C. 994(o). 18 U.S.C. 3582(c)(2). In such a case, the court may
reduce the defendants sentence, after considering applicable 3553(a) factors, if
such a reduction is consistent with applicable policy statements issued by the
Sentencing Commission. Id.
The Sentencing Commissions policy statement on retroactive reduction of
sentences, U.S.S.G. 1B1.10, provides that:
In a case in which a defendant is serving a term of imprisonment, and
the guideline range applicable to that defendant has subsequently been
lowered as a result of an amendment to the Guidelines Manual listed
in subsection (c) below, the court may reduce the defendants term of
imprisonment as provided by 18 U.S.C. 3582(c)(2), and any such
reduction in the defendants term of imprisonment shall be consistent
with this policy statement.
U.S.S.G. 1B1.10(a)(1).2 However, the court shall not reduce the defendants
term of imprisonment under 18 U.S.C. 3582(c)(2) and this policy statement to a
term that is less than the minimum of the amended guideline range. U.S.S.G.
1B1.10(b)(2)(A).

Unless otherwise indicated, all citations are to the November 1, 2008 version of the
Guidelines Manual.
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Amendment 706, which is listed in U.S.S.G. 1B1.10(c), was made

retroactive by Amendment 713. See U.S.S.G. App. C, Amend. 713; U.S.S.G.
1B1.10(c); see also United States v. Moore, 541 F.3d 1323, 1325 (11th Cir.
2008). Amendment 706 reduced offense levels in certain crack cocaine cases by
two levels, as reflected in the drug quantity table in U.S.S.G. 2D1.1(c). See
U.S.S.G. App. C, Amend. 706.
When considering a 3582(c)(2) motion, a district court must engage in a
two-part analysis. Initially, the court must recalculate the sentence under the
amended guidelines, first determining a new base level by substituting the
amended guideline range for the originally applied guideline range, and then using
that new base level to determine what ultimate sentence it would have imposed.
Bravo, 203 F.3d at 780. Next, the court must decide, in light of the 18 U.S.C.
3553(a) factors and in its discretion, whether it will impose the newly calculated
sentence or retain the original sentence. Id. at 781.
If the defendant is eligible for a sentence reduction, the district court must
consider the 3553(a) factors in deciding whether to grant the reduction and, if so,
the extent of it. United States v. Williams, No. 08-11361, manuscript op. at 6-7
(11th Cir. Feb. 9, 2009). The district court is not required to articulate specifically
the applicability, if any, of each factor, as long as the record as a whole

demonstrates that the pertinent factors were taken into account by the district
court. United States v. Vautier, 144 F.3d 756, 762 (11th Cir. 1998) (quoting
United States v. Eggersdorf, 126 F.3d 1318, 1322 (11th Cir. 1997)). We have held
that a record adequately demonstrated that a district court took into account the
3553(a) factors when the court briefly stated that it had reviewed the
governments brief, and the government had set out in its brief the pertinent factors
and facts relevant to those factors. Eggersdorf, 126 F.3d at 1322-23.
A 3582(c)(2) motion to reduce sentence does not provide a basis for de
novo resentencing. U.S.S.G. 1B1.10(a)(3); United States v. Moreno, 421 F.3d
1217, 1220 (11th Cir. 2005). Accordingly, 3582(c)(2) does not grant to the
court jurisdiction to consider extraneous sentencing issues. Bravo, 203 F.3d at
781-82. [A]ll original sentencing determinations remain unchanged with the sole
exception of the guideline range that has been amended since the original
sentencing. Id. at 781. For example, in United States v. Cothran, 106 F.3d 1560
(11th Cir. 1997), we held that the district court in a 3582(c)(2) proceeding
correctly declined to re-examine the number of marijuana plants involved in the
drug offense. Id. at 1563.
We recently held that a district court does not have the authority pursuant to

Booker3 or its progeny to reduce in the 3582(c)(2) context a defendants sentence

in a manner inconsistent with the applicable policy statements of the Sentencing
Commission. United States v. Melvin, No. 08-13497, manuscript op. at 7 (11th
Cir. Feb. 3, 2009). We concluded in Melvin that Booker does not apply to
3582(c)(2) proceedings and, therefore, does not override the limitations placed
on the district courts discretion found in the applicable policy statements for such
proceedings. Id. at 7, 9.
The district court did not err in denying Moormans request that he receive a
reduced sentence below the amended guidelines range. First, the district court
properly declined to revisit extraneous issues decided at the original sentencing
hearing. Second, the holding in Melvin forecloses Moormans argument that the
Sentencing Commissions policy statements were not controlling and he was
entitled to have the district court consider imposing a below-amended guidelines
range sentence. Finally, to the extent that Moorman has preserved the argument,
the record demonstrates that the district court adequately accounted for the
3553(a) factors in arriving at his amended 264-month sentence. Therefore, we
affirm the district court.
AFFIRMED.
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Under Booker, a district court must calculate the guideline range and consult the 18
U.S.C. 3553(a) factors in order to determine a reasonable sentence at a defendants original
sentencing hearing. See United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005).
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